IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-50445

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

EDDIE RAY WIESE, JR., also known as Eddie Ray Weise, Jr., 

 Defendant - Appellant

Appeal from the United States District Court 

for the Western District of Texas

Before DAVIS, HAYNES, and DUNCAN, Circuit Judges.

HAYNES, Circuit Judge:

We granted Eddie Ray Wiese, Jr. a certificate of appealability on his 

successive habeas corpus motion. He argues that his sentence should not have 

been enhanced under the Armed Career Criminal Act (“ACCA”). Because 

Wiese had not established a jurisdictional predicate for his successive habeas 

motion at the district court level, we VACATE the district court’s judgment 

and DISMISS Wiese’s motion for lack of jurisdiction.

I. Background

In 2003, Wiese was charged under 18 U.S.C. §§ 922(g)(1) and 924(a)(2) 

with being a felon in possession of a firearm following a 1988 Texas burglary 

of a habitation conviction. Wiese pleaded guilty pursuant to a written plea 

United States Court of Appeals

Fifth Circuit

FILED

July 23, 2018

Lyle W. Cayce

Clerk

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agreement.1 At his rearraignment, Wiese pleaded true to the fact that he had 

four prior violent felony or serious drug offense convictions, subjecting him to 

a statutory mandatory minimum sentence of fifteen years in prison and up to 

five years of supervised release. His guidelines range was 188 to 235 months 

in prison. The district court sentenced Wiese to 235 months in prison and a 

five-year term of supervised release.

Wiese filed his initial habeas application in 2004, arguing that his 

sentence was unconstitutional under Blakely v. Washington, 542 U.S. 296 

(2004). The district court denied relief. He filed the current, second motion in 

June 2016, following the Supreme Court’s decision in Johnson v. United States, 

135 S. Ct. 2551 (2015). In Johnson, the Court determined that ACCA’s residual 

clause defining a “violent felony” was unconstitutionally vague. 135 S. Ct. at 

2555–57. In Welch v. United States, 136 S. Ct. 1257, 1268 (2016), the Court 

held that Johnson retroactively applied to cases on collateral review. Wiese 

sought and received authorization from this court to file his second 28 U.S.C. 

§ 2255 motion. See § 2255(h). In the authorization, we cautioned that it was 

“tentative in that the district court must dismiss the § 2255 motion without

reaching the merits if it determines that Wiese has failed to make the showing

required to file such a motion.” See 28 U.S.C. § 2244(b)(4).

The district court denied Wiese’s motion. It first determined that it had 

jurisdiction to reach the merits. The argument forming the basis for Wiese’s 

motion—that the Texas burglary statute was not divisible—was based on 

statutory interpretation following Mathis v. United States, 136 S. Ct. 2243 

(2016), a case which we had held did not apply retroactively. See In re Lott, 

 

1 In his plea agreement, Wiese voluntarily and knowingly waived his right to contest 

his sentence in a post-conviction proceeding, including under 28 U.S.C. § 2255. However, 

because the Government must invoke an appeal waiver to enforce it and has not done so here, 

Wiese’s action is proper. See United States v. Story, 439 F.3d 226, 231 (5th Cir. 2006).

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838 F.3d 522, 523 (5th Cir. 2016) (per curiam). Nonetheless, the district court 

held that because Johnson applied retroactively, it was inconsequential that 

Mathis did not. It reasoned that Wiese could have been convicted under a nongeneric form of Texas burglary, Texas Penal Code § 30.02(a)(3), which only 

qualified for ACCA purposes under the residual clause. See United States v. 

Constante, 544 F.3d 584, 587 (5th Cir. 2008) (per curiam). 

After finding jurisdiction, the district court denied relief based upon our

decision in United States v. Uribe to hold that any argument that the Texas 

burglary statute was indivisible was foreclosed, because we held in Uribe that 

the Texas burglary statute was divisible. 838 F.3d 667 (5th Cir. 2016), cert. 

denied, 137 S. Ct. 1359 (2017), overruled by United States v. Herrold, 883 F.3d 

517, 529 (5th Cir. 2018), pets. for cert. filed (U.S. April 18, 2018) (No. 17-1445), 

and (U.S. May 21, 2018) (No. 17-9127). The district court looked to the 

Shepard2 documents provided by the Government to determine under which 

subsection of the Texas burglary statute Wiese had been convicted. The 

documents indicated that all of the ten burglaries submitted to the court had 

been committed with the intent required for generic burglary. Thus, the 

district court denied Wiese’s § 2255 motion and further denied him a certificate 

of appealability, because “Wiese ha[d] failed to make a substantial showing of 

the denial of a constitutional right.” 

Wiese appealed the district court’s decision and requested a certificate of 

appealability from this court. While his request was pending, we decided 

Herrold and held that the Texas burglary statute is indivisible, overruling 

Uribe. Herrold, 883 F.3d at 529, 541. We subsequently granted Wiese’s 

certificate of appealability “as to the issue [of] whether he should receive relief 

on his claim that he no longer qualifies for sentencing under [] ACCA.”

 

2 Shepard v. United States, 544 U.S. 13 (2005).

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II. Discussion

We must initially determine whether the district court properly reached

the merits of Wiese’s motion.3 The Government argues that the district court 

improperly ruled on the merits of Wiese’s § 2255 motion, because it lacked 

jurisdiction to do so. If the district court did not have jurisdiction to reach the 

merits, naturally, we cannot reach the merits on appeal. See United States v. 

Key, 205 F.3d 773, 774 (5th Cir. 2000) (per curiam) (“If the district court lacked 

jurisdiction, ‘[o]ur jurisdiction extends not to the merits but merely for the 

purpose of correcting the error of the lower court in entertaining the 

suit.’” (alteration in original) (quoting N.Y. Life Ins. Co. v. Deshotel, 142 F.3d 

873, 882 (5th Cir. 1998))).

A second or successive habeas application must meet strict procedural 

requirements before a district court can properly reach the merits of the 

application. See §§ 2244(b), 2255(h); Reyes-Requena v. United States, 243 F.3d 

893, 896–900 (5th Cir. 2001). There are two requirements, or “gates,” which a 

prisoner making a second or successive habeas motion must pass to have it 

heard on the merits. Reyes-Requena, 243 F.3d at 899. First, we must grant 

the prisoner permission to file a second or successive motion, which requires 

the prisoner to make a “prima facie showing” that the motion relies on a new 

claim resulting from either (1) “a new rule of constitutional law, made 

retroactive to cases on collateral review by the Supreme Court, that was 

previously unavailable,” or (2) newly discovered, clear and convincing evidence 

that but for the error no reasonable fact finder would have found the defendant 

guilty. See §§ 2244(b)(2), (3)(A), (3)(C), 2255(h). We granted such permission 

 

3 We have appellate jurisdiction over the case under 28 U.S.C. § 2253, as a final order 

in a § 2255 proceeding on which Wiese was granted a certificate of appealability. We review

a district court’s ultimate decision whether to grant a second or successive habeas motion de 

novo as a question of law and factual findings for clear error. See Hardemon v. Quarterman, 

516 F.3d 272, 274 (5th Cir. 2008).

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here, and the Government does not contest that Wiese made a prima facie 

showing as to a new, retroactive rule of constitutional law based on Johnson.4

Second, the prisoner must actually prove at the district court level that

the relief he seeks relies either on a new, retroactive rule of constitutional law 

or on new evidence. See § 2244(b)(2), (4). If the motion does not, the district 

court must dismiss without reaching the merits. See id. We noted as much 

when we granted Wiese permission to file his second habeas motion, stating 

that the grant was “tentative in that the district court must dismiss the § 2255 

motion without reaching the merits if it determines that Wiese has failed to 

make the showing required to file such a motion,” citing § 2244(b)(4) and ReyesRequena, 243 F.3d at 899. The Government argues that Wiese did not meet 

this requirement because his claim does not rely on a new, retroactive rule of 

constitutional law.

The dispositive question for jurisdictional purposes here is whether the 

sentencing court relied on the residual clause in making its sentencing 

determination—if it did, then Johnson creates a jurisdictional predicate for the 

district court, and for our court on appeal, to reach the merits of Wiese’s 

motion. We join the majority of our sister circuits in concluding that we must

look to the law at the time of sentencing to determine whether a sentence was 

imposed under the enumerated offenses clause or the residual clause. See 

United States v. Washington, 890 F.3d 891, 897–98 (10th Cir. 2018); Potter v. 

United States, 887 F.3d 785, 788 (6th Cir. 2018); Dimott v. United States, 881 

F.3d 232, 243 (1st Cir. 2018), cert. denied sub nom. Casey v. United States, 2018 

WL 1243146 (U.S. June 25, 2018) (No. 17-1251); Beeman v. United States, 871 

F.3d 1215, 1221–22 (11th Cir. 2017).

 

4 Wiese did not argue that his motion arises from new evidence, and thus, we did not 

grant permission to file a second or successive habeas motion on that basis and do not look 

to evidentiary considerations here.

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That said, the circuits are not in accord on how we decide whether the 

original sentencing court relied on the residual clause, and we previously have

not established a standard to determine whether the sentencing court relied 

on the residual clause for Johnson purposes. See United States v. Taylor, 873 

F.3d 476, 481 (5th Cir. 2017); compare Washington, 890 F.3d at 896 (applying 

a “more likely than not” standard and collecting cases that have determined 

the burden of proof), Potter, 887 F.3d at 788, Dimott, 881 F.3d at 240, and

Beeman, 871 F.3d at 1221–22,5 with United States v. Geozos, 870 F.3d 890, 

896 (9th Cir. 2017) (“We therefore hold that, when it is unclear whether a 

sentencing court relied on the residual clause in finding that a defendant 

qualified as an armed career criminal, but it may have, the defendant’s § 2255 

claim ‘relies on’ the constitutional rule announced in [Johnson].”), and United 

States v. Winston, 850 F.3d 677, 682 (4th Cir. 2017) (articulating that the same 

“may have” standard applies “regardless of any non-essential conclusions a 

court may or may not have articulated on the record in determining the 

defendant’s sentence”). We note that the “more likely than not” standard 

appears to be the more appropriate standard since it comports with the general 

civil standard for review and with the stringent and limited approach of 

AEDPA to successive habeas applications.

But we need not conclusively decide that here because even under the 

standard Wiese argues is most favorable to him—the Fourth Circuit’s standard 

requiring a defendant to show that the sentencing court “may have” relied on 

 

5 As Wiese notes in his reply brief, Dimott and Beeman both were original habeas 

claims under § 2255, as opposed to second or successive applications under § 2244. See 

Dimott, 881 F.3d at 233–34; Beeman, 871 F.3d at 1218–19. Other courts have used some of 

the analysis from those cases to illuminate the successive issue. See Washington, 890 F.3d 

at 896. Moreover, as the standard to grant relief under a second or successive habeas 

application is even more limited than that of an original habeas application, this distinction 

does not aid Wiese. Cf. Gonzalez v. Crosby, 545 U.S. 524, 529–30 (2005) (noting the 

restrictions placed on second or successive habeas petitions due to AEDPA).

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the residual clause for a court to consider a collateral challenge based on 

Johnson, as articulated in Winston, 850 F.3d at 682—Wiese has not shown that 

the sentencing court “may have” relied on the residual clause.

In determining potential reliance on the residual clause by the 

sentencing court, we may look to (1) the sentencing record for direct evidence 

of a sentence, Beeman, 871 F.3d at 1224 n.4, see also Massey v. United States, 

--- F.3d ----, No. 17-1676, 2018 WL 3370584, at *3 (2d Cir. July 11, 2018), and

(2) “‘the relevant background legal environment that existed at the time of [the 

defendant’s] sentencing’ and the [presentence report (“PSR”)] and other 

relevant materials before the district court,” Washington, 890 F.3d at 896 

(citing United States v. Snyder, 871 F.3d 1122, 1128–30 (10th Cir. 2017), cert. 

denied, 138 S. Ct. 1696 (2018)). Here, although the sentencing judge did not 

make any statement as to which clause was used for the sentencing 

enhancement, it is not “more likely than not” that the residual clause came 

into play. As well, there is nothing to indicate that the sentencing judge “may 

have” relied on the residual clause.

In 2003, when Wiese was convicted of being a felon in possession, all of 

§ 30.02(a) was considered generic burglary under the enumerated offenses 

clause of ACCA. See United States v. Silva, 957 F.2d 157, 162 (5th Cir. 1992); 

see also United States v. Stone, 72 F. App’x 149, 150 (5th Cir. 2003) (per curiam) 

(citing Silva, 957 F.2d at 161–62).6 That we held five years later that § 

30.02(a)(3) is not generic burglary, United States v. Constante, 544 F.3d 584, 

587 (5th Cir. 2008) (per curiam), or that we held earlier this year that § 30.02(a)

is indivisible, Herrold, 883 F.3d at 529, are of no consequence to determining 

the mindset of a sentencing judge in 2003. Indeed, Herrold’s state law analysis 

 

6 Although Stone is not “controlling precedent,” it “may be [cited as] persuasive 

authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5th Cir. R. 47.5.4).

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that undergirded the divisibility determination was largely based upon a Texas 

Court of Appeals case decided five years after the sentencing in this case. See 

Herrold, 883 F.3d at 523, 525 (citing Martinez v. State, 269 S.W.3d 777 (Tex. 

App.—Austin 2008, no pet.)). Thus, at the time of sentencing, there was 

absolutely nothing to put the residual clause on the sentencing court’s radar 

in this case.

What is more, the PSR and other documents before the sentencing court 

clearly indicate that the sentencing judge would have relied on the enumerated 

offenses clause in sentencing Wiese. The PSR identifies “Burglary of a 

Habitation” as the offense which led to Wiese’s sentence enhancement, and the 

charges against Wiese in all ten instances for which the Government provided 

Shepard documents reflect that he was convicted with the requisite intent 

under Texas Penal Code § 30.02(a)(1). We have never held that subsection 

(a)(1), alone, does not constitute generic burglary; Herrold declined to reach 

that issue. Herrold, 883 F.3d at 541. Thus, the actual charges that Wiese was 

convicted of did not present a situation where the residual clause would have, 

in any way, been considered as a basis for ACCA sentencing enhancement.

Neither Mathis nor Herrold can save Wiese’s motion. Mathis did not 

state a new rule of constitutional law that has been made retroactive to cases 

on collateral review by the Supreme Court, In re Lott, 838 F.3d at 523, and 

neither did Herrold, a decision of this court. To the extent that Wiese attempts 

to use Mathis and Herrold to argue that, in light of Johnson, convictions under 

the enumerated offenses clause must also be reconsidered, numerous circuit 

courts have expressly rejected that contention. See Perez v. United States, ---

F. App’x ----, No. 16-17751, 2018 WL 1750555, at *5 (11th Cir. Apr. 12, 2018) 

(per curiam), pet. for cert. filed (U.S. Jul. 10, 2018) (No. 18-5217); Dimott, 881 

F.3d at 237; United States v. Safford, 707 F. App’x 571, 573 (10th Cir. 2017) 

(“What Defendant is attempting is to leverage the irrelevant Johnson decision 

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to enable him to apply Mathis retroactively. We can admire the effort, but we 

cannot permit such a circumvention of habeas law.”), pet. for cert. filed (U.S. 

May 25, 2018) (No. 17-9170); Holt v. United States, 843 F.3d 720, 723–24 (7th 

Cir. 2016); cf. Massey, --- F.3d ----, 2018 WL 3370584, at *4 (analogizing to 

Dimott to hold that similarly bootstrapping Curtis Johnson v. United States, 

559 U.S. 133 (2010), to Johnson to support a successive habeas motion “cannot 

be right” (quoting Dimott, 881 F.3d at 238)). Although we have not addressed 

this precise argument before today, we have implicitly rejected the contention 

as well. See In re Lott, 838 F.3d at 522–23 (rejecting the contentions that (1) 

Johnson applied to a sentencing enhancement based on the enumerated 

offenses clause, and (2) Mathis could apply to set forth a new, retroactive rule 

of constitutional law). We expressly reject it here. Johnson only applied to the 

residual clause and cannot be used to attack sentences under the enumerated 

offenses clause. If the district court did not rely on the residual clause, Johnson 

cannot be a jurisdictional predicate, regardless of subsequent changes in the 

law, if they are not new, retroactive rules of constitutional law by the Supreme 

Court.

In sum, Wiese has not established that the sentencing court “more likely 

than not” relied upon the residual clause. Even if we apply the less demanding

“may have relied” standard, there is no evidence that the sentencing court 

“may have” relied on the residual clause in sentencing Wiese. Merely a 

theoretical possibility cannot satisfy this standard. Cf. United States v. 

Jeffries, 822 F.3d 192, 193–94 (5th Cir. 2016) (holding that even if Johnson

applied to the residual clause of United States Sentencing Guidelines 

(“U.S.S.G.”) § 4B1.2, a defendant sentenced as a career offender under U.S.S.G. 

§ 4B1.1 would not have an arguable claim for relief because his crime was a 

specifically enumerated crime of violence in the Application Note), cert. denied, 

137 S. Ct. 1328 (2017). Therefore, the district court erred in reaching the 

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merits of Wiese’s motion, and we likewise lack jurisdiction to do so. 

III. Conclusion

Because Johnson is not a jurisdictional predicate for Wiese’s § 2255 

motion, the district court did not have jurisdiction to reach the merits of the 

motion. Consequently, we VACATE the district court’s judgment and 

DISMISS Wiese’s § 2255 motion for lack of jurisdiction.

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